[Federal Register Volume 78, Number 85 (Thursday, May 2, 2013)]
[Notices]
[Pages 25701-25702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10413]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-533-821]
Certain Hot-Rolled Carbon Steel Flat Products From India: Notice
of Second Amended Final Results of Administrative Review Pursuant to
Court Decision
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On April 9, 2013, the United States Court of International
Trade (CIT) sustained the Department of Commerce's (the Department)
January 2013 remand results.\1\ The January 2013 remand results
explained how the Department corroborated, to the extent practicable,
the adverse facts available (AFA) rate assigned to Essar Steel Limited
(Essar) in connection with the State Government of Chhattisgarh
Industrial Policy (CIP) in the countervailing duty (CVD) administrative
review of certain hot-rolled carbon steel flat products from India for
the 2007 review period (the fifth review period or fifth administrative
review).\2\ Consistent with the decision of the United States Court of
Appeals for the Federal Circuit (CAFC) in Timken,\3\ as clarified by
Diamond Sawblades,\4\ the Department is notifying the public that the
final CIT judgment in this case is not in harmony with the Department's
Amended Final Results \5\ and is, therefore, amending the Amended Final
Results.
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\1\ See Essar Steel Limited v. United States, Slip Op. 13-48,
Court No. 09-197 (Ct. Int'l Trade April 9, 2013) (Essar V); Results
of Redetermination Pursuant to Court Remand, Essar Steel Limited v.
United States, Court Number 09-00197, Slip Op. 12-132 (CIT October
15, 2012) filed with the CIT on January 11, 2013 (January 2013
remand results).
\2\ See Certain Hot-Rolled Carbon Steel Flat Products from
India: Final Results and Partial Rescission of Countervailing Duty
Administrative Review, 74 FR 20,923 (May 6, 2009) (Final Results),
and the accompanying Issues and Decision Memorandum (I&D
Memorandum). The administrative review covering the 2007 period is
the fifth administrative review of the countervailing duty order on
HRCS from India. The administrative review covering the 2006 period
is the ``fourth'' administrative review. See Final Results, and the
accompanying I&D Memorandum at ``Sale of High-Grade Iron Ore for
LTAR'' section (referring to the 2006 administrative review as the
fourth administrative review).
\3\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\4\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
\5\ See Certain Hot-Rolled Carbon Steel Flat Products From
India: Notice of Court Decision Not in Harmony With Final Results of
Administrative Review and Notice of Amended Final Results of
Administrative Review Pursuant to Court Decision, 76 FR 7810
(February 11, 2011) (Amended Final Results).
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DATES: Effective Date: April 19, 2013.
FOR FURTHER INFORMATION CONTACT: Robert Copyak, AD/CVD Operations,
Office 8, Import Administration, U.S. Department of Commerce, C129,
14th Street and Constitution Avenue NW., Washington, DC 20230;
telephone: 202-482-2209.
SUPPLEMENTARY INFORMATION: On May 6, 2009, the Department published
its Final Results.\6\ In the Final Results, pursuant to sections 776(a)
and (b) of the Tariff Act of 1930, as amended (the Act), the Department
applied AFA to find that the subprograms under the CIP constituted
financial contributions that were specific and that Essar used and
benefited from the subprograms under the CIP.\7\ The Department
attempted to calculate an individual rate for Essar based on the
benefit received from the CIP programs but, because it was unable to
obtain the necessary information from Essar, it relied on secondary
information to determine a rate.\8\ Specifically, the Department used
the highest above de minimis subsidy rate calculated for similar
programs (from prior segments of this proceeding) involving grants, the
provision of goods for less than adequate remuneration (LTAR), and
indirect taxes.\9\
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\6\ See Final Results.
\7\ See Final Results, and the accompanying I&D Memorandum at 3-
7 and Comment 2.
\8\ Id. at 22-26.
\9\ Id.
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In Essar I, the CIT remanded Commerce's AFA determination that
Essar benefited from the CIP.\10\ The CIT explained that the
Department's conclusions in its July 2010 remand redetermination
regarding the fourth administrative review in this proceeding, in which
the Department found that Essar did not benefit from the CIP based on
documents on the fourth administrative review remand record, cast
``grave doubt'' upon the Department's findings that Essar benefited
from the CIP during the fifth review period.\11\ Thus, the CIT ordered
the Department to reopen and place on the administrative record of the
fifth administrative review certain documents from the fourth
administrative review remand proceeding, and to consider those
documents in its reassessment of whether Essar benefited from the
CIP.\12\
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\10\ Essar Steel Limited v. United States, 721 F. Supp. 2d 1285,
1301 (CIT 2010) (Essar I).
\11\ Id. at 1300; see also Final Results of Redetermination
Pursuant to Court Remand, United States Steel Corp. v. United
States, CIT No., 08-239 (Department of Commerce July 15, 2010)
(Fourth Administrative Review Redetermination) at 5-6, 22-23.
\12\ Essar I at 1301.
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On October 28, 2010, the Department issued its final results of
redetermination pursuant to Essar I. The remand redetermination
explained that, in accordance with the CIT's order, and under
respectful protest, the Department placed certain documents from the
fourth administrative review remand proceeding on the record of the
fifth administrative review. In light of certain statements by the CIT
in Essar I and those documents that the CIT ordered the Department to
place on the administrative record, the Department reassessed whether
Essar benefited from the CIP during the fifth review period
[[Page 25702]]
and determined that Essar did not.\13\ The Department's redetermination
resulted in a change to the Final Results concerning Essar's net
subsidy rate for the CIP from 54.69 percent to zero.\14\ Therefore,
Essar's total net countervailable rate from the Final Results, 76.88
percent, decreased by 54.69 percentage points to a total net
countervailable subsidy rate of 22.19 percent.\15\ The CIT sustained
the Department's remand redetermination on January 25, 2011, in Essar
II.\16\
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\13\ See Final Results of Redetermination Pursuant to Court
Remand, Essar Steel Limited. v. United States, Court No., 09-00197
(Department of Commerce October 28, 2010) at 16 (Essar I Remand
Redetermination).
\14\ Id. at 16-17.
\15\ Id. In Essar I Remand Redetermination, the Department
inadvertently stated that Essar's total net countervailable subsidy
rate from the Final Results, 76.88 percent, decreased by 54.69
percentage points, to a total net countervailable subsidy rate of
22.19 percent. See also the Amended Final Results. However, Essar's
AFA rate for the CIP in the Final Results was 54.68 percent ad
valorem, not 54.69 percent ad valorem. Therefore, the correct AFA
rate for Essar is 54.68 percent ad valorem, which is the AFA rate
from the Final Results. The final net subsidy rate for Essar is the
same rate as the rate from the Final Results, 76.88 ad valorem.
\16\ See Essar Steel Limited v. United States, Slip Op. 11-10,
Court No. 09-197 (Ct Int'l Trade January 25, 2011) (Essar II).
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On February 11, 2011, the Department published the Amended Final
Results, amending the total net countervailable subsidy rate for Essar
for the period January 1, 2007, through December 31, 2007, and cash
deposit rate to 22.19 percent.\17\ The Department instructed U.S.
Customs and Border Protection (CBP) to collect cash deposits for Essar
at the cash deposit rate of 22.19 percent.
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\17\ Amended Final Results, 76 FR at 7811.
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The CIT's ruling in Essar II was appealed to the CAFC. In Essar
III, the CAFC reversed the CIT's decision concerning the application of
AFA with respect to the CIP and upheld the Department's application of
AFA with respect to Essar's participation in the CIP as supported by
substantial evidence.\18\ Subsequently, the case returned to the CIT,
which remanded the case for Commerce to address the outstanding issue
of corroboration of the AFA rate the Department had applied to Essar
for the CIP in the Final Results.\19\ The CIT stated that the
Department ``explained its methodology for calculating the AFA rate
assigned to Essar for its participation in the CIP programs but did not
discuss the specific issue of corroboration.'' \20\ Therefore, the
Court remanded the case for the Department to explain how it
corroborated Essar's AFA rate or explain why corroboration is not
practicable.\21\
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\18\ See Essar Steel Limited v. United States, 678 F.3d 1268,
1278-1279 (CAFC 2012) (Essar III).
\19\ Essar Steel Limited v. United States, 880 F. Supp. 2d 1327,
1332 (CIT 2012) (Essar IV).
\20\ Essar IV at 1330.
\21\ Id. at 1331.
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On January 11, 2013, the Department filed with the CIT its remand
results explaining how it corroborated, to the extent practicable, the
AFA rate it had assigned to Essar in the Final Results.\22\ On April 9,
2013, the CIT sustained the Department's remand results, holding that
the Department ``corroborated Essar's AFA rate to the extent
practicable by utilizing calculated benefits from similar programs
identified in this CVD proceeding.'' \23\
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\22\ See January 2013 remand results.
\23\ See Essar V.
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Amended Final Results
The CIT's April 9, 2013, judgment in Essar V sustaining the
Department's corroboration of the AFA rate for Essar (54.68 percent ad
valorem), constitutes a final decision of that court that is not in
harmony with the Department's Amended Final Results.\24\ Because there
is now a final CIT decision, the Department amends its Amended Final
Results. The following total countervailable net subsidy rate exists
for the 2007 period of review:
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\24\ See section 516A of the Act; Timken, 893 F.2d at 341;
Diamond Sawblades, 626 F.3d 1374.
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Ad valorem net
Company subsidy rate
(percent)
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Essar Steel Limited..................................... 76.88
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The cash deposit rate for Essar is also 76.88 percent. The
Department will instruct CBP to collect cash deposits for Essar at the
rate indicated.
In the event the CIT's ruling is not appealed or, if appealed,
upheld by the CAFC, the Department will instruct CBP to assess
countervailing duties on entries of the subject merchandise during the
2007 review period from Essar based on the revised assessment rate
determined by the Department.
This notice is issued and published in accordance with sections
516A(e), 751(a), and 777(i)(1) of the Act.
Dated: April 25, 2013.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2013-10413 Filed 5-1-13; 8:45 am]
BILLING CODE 3510-DS-P